Oscar Pistorius - Sentencing - 7.6.2016

[Marfa Lights]

No my friend. At the initial hearing, Roux REQUESTED the Magistrate that OP would be charged with Culpable Homicide.

Still not the same as pleading guilty. Roux just wanted to fight the lesser charge. He never said Oscar was prepared to plead guilty to CH.

 

[aftermath]

I am sure the State would have considered a plea deal for CH to have saved themselves and the taxpayers from a potentially drawn out celebrity trial, but if you recall, Oscar stated in his bail statement that he did not understand why he was being charged with a crime at all. Oscar "I always win" Pistorius would not likely have accepted any guilt since he knew he could afford the best justice money can buy. That's my opinion anyway. Do you think he would have accepted a plea bargain for CH and the same sentence Masipa originally gave him?

I may be misunderstanding Mdunge's sentence, but it reads as 8 years with only 5 of those years fully suspended, i.e. 3 years custodial sentence and 5 years suspended. Is that not correct? Oscar received 5 years with the allowance for one custodial year and 4 years correctional supervision (liberal privileges under mansion arrest).

No..I think it is 8 years fully suspended, but if he commits assault or murder in the next five years he goes immediately to prison to serve out his sentence (and presumably to await trial for his second offence). No custodial element at all, unless he commits assault/murder within the five year suspension

Given that the State were going for premeditated murder originally, I am pretty sure Pistorius was not given the option to plead to CH at all.

 

[Marfa Lights]

No..I think it is 8 years fully suspended, but if he commits assault or murder in the next five years he goes immediately to prison to serve out his sentence (and presumably to await trial for his second offence). No custodial element at all, unless he commits assault/murder within the five year suspension

Given that the State were going for premeditated murder originally, I am pretty sure Pistorius was not given the option to plead to CH at all.

I still don't see how you get that the entire 8 years is wholly suspended. Maybe someone will clarify.

Pistorius always had the option to plead guilty. His highly paid legal team could have presented that offer anytime. I am sure they felt it was not in their intere$t or that of their client. I think Pistorius would have wanted to run his race with the justice system. Not sure he would make that decision again today.

ETA: You are probably correct about the 8 years being wholly suspended-- at least according to the one News24 article I found. Search turned up nothing else conclusive though.
http://www.news24.com/SouthAfrica/News/Man-who-shot-wife-in-error-can-sympathise-with-Oscar-20140407

 

[JudgeJudi]

I get the feeling she struggles with analytical thought at the High Court level

I get the feeling she'd struggle with analytical thought at any level.

 

[aftermath]

I still don't see how you get that the entire 8 years is wholly suspended. Maybe someone will clarify.

Pistorius always had the option to plead guilty. His highly paid legal team could have presented that offer anytime. I am sure they felt it was not in their intere$t or that of their client. I think Pistorius would have wanted to run his race with the justice system. Not sure he would make that decision again today.

ETA: You are probably correct about the 8 years being wholly suspended-- at least according to the one News24 article I found. Search turned up nothing else conclusive though.
http://www.news24.com/SouthAfrica/News/Man-who-shot-wife-in-error-can-sympathise-with-Oscar-20140407

I don't see how he had the chance to plead guilty to CH.

 

[Fuskier]

http://www.news24.com/SouthAfrica/News/pistorius-in-prison-single-room-cell-20160707-19?isapp=true
Pistorius in prison single room cell
2016-07-07.
The disgraced paralympian is in a single hospital prison cell in Pretoria’s Kgosi Mampuru prison. “He is in the same facility in the hospital section of the Pretoria prison,” Wolela told AFP.
Picture of OP's cell: http://i2.cdn.turner.com/cnnnext/dam/assets/151202224215-oscar-pistorius-jail-cell-1-super-169.jpg

South African Heroes ‏@SA_Heroes 13m13 minutes ago
Correctional Services has confirmed #OscarPistorius will be kept in hospital wing of Kgosi Mampuru Centre

 

[Marfa Lights]

I don't see how he had the chance to plead guilty to CH.

The defense team could have made that offer at anytime.
The problem is Oscar would have to admit guilt and accept responsibility and he was unwilling to do that.
They wanted an acquittal based on PPD in my opinion.

 

[akp]

I suspect as a disabled person herself, she still holds on to the feelings she had when Oscar was the hero of South Africa, striding to victory in the Olympics and Paralympics against all odds.

The riddle that is Masipa is going to trouble us for a long time.

One main reason that I find it difficult to subscribe to the view - that her sympathy for OP is the reason behind her verdicts - is the utter disrespect for Reeva and now Barry Steenkamp that comes out in her judgement. I simply do not see any reason whatsoever why Masipa would be or would have to be so disrespectful to them, even if she wanted to save OP.

For the same reason, I have now ruled out her being paid off as a possible reason too. If she was corrupt, or sympathetic to OP, she could do what she wanted to do without being so disrespectful to the victim and her family. On both occasions, the original trial and this time, the disrespect is so very prominent in the verdicts that she wrote or read out. Add to this, the observation that both documents are devoid of any coherent logical reasoning, forget sound legal principles. One can be incompetent, but can one be incompetent to this extent? Remember that she had been a social worker, a crime reporter and an advocate prior to being appointed as a judge. That leaves me with the following as a strong possibility. That someone else wrote the script for her, and somehow, she was pressurised to go with it.
How? Of course we don't know, we can only speculate. But there are just so many ways possible. We all are human beings, have our weaknesses. Blackmail, threat - these are all very distinct possibilities. If you have money, and have no morals, there are just so many avenues open to you to abuse a system. And by our experience so far, the Pistorius family is very well qualified in this respect.

Two more points that kind of supports this line of thinking:
1.
the script, the verdict both times is based roughly on whatever Roux said in the court, or wrote in the HOA. This was the case in the trial. This is the case this time also, if you look closely. On the other hand, it could not be Roux himself. Or anyone legally sound. A person like him would not make so many elementary mistakes MrJitty has been repeatedly pointing out here. Forget legally sound, the person has to be pretty dim - his errors are evident to even me, with no legal background, because there are just so many internal inconsistencies, total absence of coherent logic. If it was someone like Roux, for example, he would have written the original verdict in a much better way, that would have made it appeal proof. Even Masipa should have done a better job of it. So this could be some close confidante, with some rudimentary legal knowledge, but no real understanding, picked up for the job.
2.
Not just Masipa, I do not see why would anyone be disrespectful to Reeva or her father in this whole matter; unless - unless he or she perhaps believes, or better still, knows that there was indeed an argument that led to the killing and holds Reeva responsible for that argument. For them, the entire blame is on her, and then the disrespect does not seem unnatural any more. Once again, points to the Pistorius family.

 

[Tortoise]

akp - I listened to Nick van der Leek's podcast yesterday and he said similar; that it wasn't Masipa's vocabulary to say words like 'not a shred of evidence'. He also wagered that aggravation witnesses such as Sam's mother, and others, refused to testify because of fear. I will leave it to you to determine what that fear might have been.

Something tells me it was a collaborative effort, I think the P family most probably has people in influential positions and strategically placed to do that, but I also truly believe she is wholeheartedly behind the sentiments she expressed. Her anger at being undermined and criticised was palpable. I've heard in the same podcast that Uncle Arnold was standing in front of counsel's benches before the hearing began, the only person standing while the public gallery was seated, surveying every face in the gallery, contentedly, as if it was (in my words) his land. That speaks of ownership, from my point of view.

 

[Hazy]

The riddle that is Masipa is going to trouble us for a long time.

One main reason that I find it difficult to subscribe to the view - that her sympathy for OP is the reason behind her verdicts - is the utter disrespect for Reeva and now Barry Steenkamp that comes out in her judgement. I simply do not see any reason whatsoever why Masipa would be or would have to be so disrespectful to them, even if she wanted to save OP.

For the same reason, I have now ruled out her being paid off as a possible reason too. If she was corrupt, or sympathetic to OP, she could do what she wanted to do without being so disrespectful to the victim and her family. On both occasions, the original trial and this time, the disrespect is so very prominent in the verdicts that she wrote or read out. Add to this, the observation that both documents are devoid of any coherent logical reasoning, forget sound legal principles. One can be incompetent, but can one be incompetent to this extent? Remember that she had been a social worker, a crime reporter and an advocate prior to being appointed as a judge. That leaves me with the following as a strong possibility. That someone else wrote the script for her, and somehow, she was pressurised to go with it.
How? Of course we don't know, we can only speculate. But there are just so many ways possible. We all are human beings, have our weaknesses. Blackmail, threat - these are all very distinct possibilities. If you have money, and have no morals, there are just so many avenues open to you to abuse a system. And by our experience so far, the Pistorius family is very well qualified in this respect.

Two more points that kind of supports this line of thinking:
1.
the script, the verdict both times is based roughly on whatever Roux said in the court, or wrote in the HOA. This was the case in the trial. This is the case this time also, if you look closely. On the other hand, it could not be Roux himself. Or anyone legally sound. A person like him would not make so many elementary mistakes MrJitty has been repeatedly pointing out here. Forget legally sound, the person has to be pretty dim - his errors are evident to even me, with no legal background, because there are just so many internal inconsistencies, total absence of coherent logic. If it was someone like Roux, for example, he would have written the original verdict in a much better way, that would have made it appeal proof. Even Masipa should have done a better job of it. So this could be some close confidante, with some rudimentary legal knowledge, but no real understanding, picked up for the job.
2.
Not just Masipa, I do not see why would anyone be disrespectful to Reeva or her father in this whole matter; unless - unless he or she perhaps believes, or better still, knows that there was indeed an argument that led to the killing and holds Reeva responsible for that argument. For them, the entire blame is on her, and then the disrespect does not seem unnatural any more. Once again, points to the Pistorius family.

This post is so good that it's worth repeating.

I said something similar when I said that her comments at sentencing were quite similar to what was expressed in the 'interview' .

Of course you said it all SO much better than I !

 

[Marfa Lights]

The riddle that is Masipa is going to trouble us for a long time.

One main reason that I find it difficult to subscribe to the view - that her sympathy for OP is the reason behind her verdicts - is the utter disrespect for Reeva and now Barry Steenkamp that comes out in her judgement. I simply do not see any reason whatsoever why Masipa would be or would have to be so disrespectful to them, even if she wanted to save OP.

<Respectfully Snipped>

I noticed from the very beginning of her judgment how she looked up and made a very biting reference to how she would also consider the victim along with the offender, the offense and the needs of society. She said it so tersely it shocked me-- her tone was so unnecessarily resentful and pointed (presumably at Nel, the Steenkamps, the Women's Groups, etc.)

Her demeanor was so different than in the first trial I suspected right away we were in for her vindication of her original judgment.

 

[Marfa Lights]

akp - I listened to Nick van der Leek's podcast yesterday and he said similar; that it wasn't Masipa's vocabulary to say words like 'not a shred of evidence'. He also wagered that aggravation witnesses such as Sam's mother, and others, refused to testify because of fear. I will leave it to you to determine what that fear might have been.

Something tells me it was a collaborative effort, I think the P family most probably has people in influential positions and strategically placed to do that, but I also truly believe she is wholeheartedly behind the sentiments she expressed. Her anger at being undermined and criticised was palpable. I've heard in the same podcast that Uncle Arnold was standing in front of counsel's benches before the hearing began, the only person standing while the public gallery was seated, surveying every face in the gallery, contentedly, as if it was (in my words) his land. That speaks of ownership, from my point of view.

I noticed other instances where her words seemed to be scripted by Barry Roux.

And I am sure Uncle Arnold very much feels like he has been pulling the strings all along, having paid dearly for the privilege.
Hope his fertilizer price-fixing lawsuit costs him dearly too.

 

[Tortoise]

Worth bearing in mind that the infiltration doesn't appear to extend to the higher echelons of the SA justice system. That is where red-faced Roux found he was on real shaky ground and put through his paces.

Another reason for the NPA to go back to the SCA, for a proper and thorough review. Away from Guateng.

 

[JudgeJudi]

Masipa referred to the triad of Zinn which requires the court to consider

• The seriousness of the offence,
• The personal circumstances of the offender, and
• The public interest

in order to arrive at an appropriate sentence.

However, in order to consider any of the above, a Judge needs to

• be able to interpret the law and assess the evidence presented,
• control how hearings and trials unfold in their courtroom,
• and most important of all, provide an independent and impartial assessment of the facts and how the law applies to those facts in the pursuit of justice.

Masipa was incapable of doing any of the above due to her poor understanding of the law on even elementary matters, her inability to assess the evidence presented, her inability to take control of her court, and most importantly, her total lack of an impartial assessment of the facts coupled with obvious bias towards Pistorius, hence the outrageous sentence which has shocked both the legal profession and the public. Add to the mix her arrogant contempt for the decision of the SCA, SA's highest appellate court. She has singlehandedly undone all that the televising of this trial had set out to achieve. What an utter disgrace to SA's judiciary.

 

[Cherwell]

I have always thought that threats, or intimidation, as much as bribery may have played a part in procuring the results. The sooner this goes back to the higher court, the better.

I still consider Masipa to be a contemptible person though.

 

[Interested Bystander]

Still not the same as pleading guilty. Roux just wanted to fight the lesser charge. He never said Oscar was prepared to plead guilty to CH.

I have a vague recollection (although I cannot back it up with a newspaper article), that Roux offered Nel CH but Nel turned it down and wanted Premeditated Murder which meant Roux/OP had to come up with a defence to murder. They then tried PPD but OP messed up on the stand. This was not discussed in court and may well be that it was just a rumour. I agree Roux never actually said OP was prepared to plead guilty to CH.

 

[Viper]

Still not the same as pleading guilty. Roux just wanted to fight the lesser charge. He never said Oscar was prepared to plead guilty to CH.

That's true.

 

[Viper]

I hope they do Appeal, and the announcement is made soon . :thinking:

With nothing to lose and everything to gain, I really don't know why they waited more than a few minutes to announce an appeal. The Steenkamps not withstanding of course.

 

[mrjitty]

Thank you for the above link Sherbert. Excellent articulation. An excerpt:

... Substantial and compelling circumstances represent something exceptional.

Courts are bound by minimum sentences unless exceptional and unusual circumstances are present...

The term &#8220;substantial and compelling circumstances&#8221; is not expressly defined by statute, judges have the latitude to interpret that wording as they see fit.
That latitude has resulted in disparities in the application of the law, including in the Pistorus case...

IMO the NPA needs to lodge an appeal against Masipa's application of the law in this case and seek that the interpretation of 'substantial and compelling circumstances'
be defined by statute. My opinion only.

Completely agree.

For instance does the existence of "substantial and compelling circumstances" mean that the Judge can then approach sentencing without the minimum in mind?

Or does it mean that the point of departure is 15 but each "substantial and compelling circumstances" is applied as a discount?

The Judge seemed to approach it on the basis that once the minimum was off the table - she could approach sentence with a clean slate.

Nel - correctly in my view - argued that 15 years is the starting point

Time should have been added for each aggravating factor.

Then a discount could apply for each "substantial and compelling circumstance"

In my view, factors like "remorse" cannot apply as a discount to the 15 mandatory minimum

Otherwise what is the point of the mandatory requirement?

Remorse etc are just normal sentencing factors which presumably the legislature intended to exclude in the case of murder by applying a minimum.

 

[Colin de France]

The riddle that is Masipa is going to trouble us for a long time.

One main reason that I find it difficult to subscribe to the view - that her sympathy for OP is the reason behind her verdicts - is the utter disrespect for Reeva and now Barry Steenkamp that comes out in her judgement. I simply do not see any reason whatsoever why Masipa would be or would have to be so disrespectful to them, even if she wanted to save OP.

For the same reason, I have now ruled out her being paid off as a possible reason too. If she was corrupt, or sympathetic to OP, she could do what she wanted to do without being so disrespectful to the victim and her family. On both occasions, the original trial and this time, the disrespect is so very prominent in the verdicts that she wrote or read out. Add to this, the observation that both documents are devoid of any coherent logical reasoning, forget sound legal principles. One can be incompetent, but can one be incompetent to this extent? Remember that she had been a social worker, a crime reporter and an advocate prior to being appointed as a judge. That leaves me with the following as a strong possibility. That someone else wrote the script for her, and somehow, she was pressurised to go with it.
How? Of course we don't know, we can only speculate. But there are just so many ways possible. We all are human beings, have our weaknesses. Blackmail, threat - these are all very distinct possibilities. If you have money, and have no morals, there are just so many avenues open to you to abuse a system. And by our experience so far, the Pistorius family is very well qualified in this respect.

Two more points that kind of supports this line of thinking:
1.
the script, the verdict both times is based roughly on whatever Roux said in the court, or wrote in the HOA. This was the case in the trial. This is the case this time also, if you look closely. On the other hand, it could not be Roux himself. Or anyone legally sound. A person like him would not make so many elementary mistakes MrJitty has been repeatedly pointing out here. Forget legally sound, the person has to be pretty dim - his errors are evident to even me, with no legal background, because there are just so many internal inconsistencies, total absence of coherent logic. If it was someone like Roux, for example, he would have written the original verdict in a much better way, that would have made it appeal proof. Even Masipa should have done a better job of it. So this could be some close confidante, with some rudimentary legal knowledge, but no real understanding, picked up for the job.
2.
Not just Masipa, I do not see why would anyone be disrespectful to Reeva or her father in this whole matter; unless - unless he or she perhaps believes, or better still, knows that there was indeed an argument that led to the killing and holds Reeva responsible for that argument. For them, the entire blame is on her, and then the disrespect does not seem unnatural any more. Once again, points to the Pistorius family.

....good post, very instinctive....there is something overiding in this case no doubt about it and more than likely many things not brought out into the open, i keep wondering about her being pregnant, this has been denied, is it reliable...?